A New Test for Texas' Abortion Restrictions

Amy Hagstrom Miller, center, chief executive of Whole Woman’s Health, the lead plaintiff in an abortion lawsuit, outside the federal courthouse in Austin on Aug. 4.

The latest legal challenge to Texas’ sweeping abortion measures went to trial in a federal courthouse in Austin last week, as federal judges around the country grapple with the question of how far states can go in regulating abortion — a question that seems likely to end up in the U.S. Supreme Court.

The crux of the matter is what the Supreme Court meant when it ruled in 1992 that abortion regulations may not impose an “undue burden” on women seeking an abortion. Some judges have held that as long as a law has a “rational basis” and does not prevent most women from getting an abortion, it does not impose an undue burden. But others have suggested that laws making abortions harder to get must have a good reason for doing so.

“States can protect unborn life, but they have to do so in ways that reason with women, rather than just interpose obstacles to women,” said Reva Siegel, a Yale Law School professor who has written about Roe v. Wade. “These laws do interpose obstacles, and they claim to do so on women’s behalf, and the question is whether that purpose is a legitimate one.”

The Texas lawsuit, brought by abortion providers, challenged the requirement that abortion facilities meet the standards for ambulatory surgical centers. Those standards, which include hallway widths and pipelines for anesthesia, have proven too expensive for most Texas clinics to meet. Fewer than 10 clinics in the state — and none in the Lower Rio Grande Valley or West Texas — will remain open if the provision goes into effect Sept. 1, as scheduled. U.S. District Judge Lee Yeakel, who is hearing the Texas case, is expected to rule before then.

Supporters say the regulations will make abortions safer; critics argue that they have no medical justification and are intended to limit abortions by forcing clinics to close.

In the 5th Circuit ruling, Judge Edith H. Jones held that since there was at least a rational basis for believing the law would make abortions safer, and it would not prevent “a large fraction” of women in the state from getting an abortion, it did not impose an undue burden. She dismissed the argument that greater driving distances alone could violate that standard.

Other courts have taken a different view. In December, Judge Richard A. Posner of the 7th Circuit held in a case about a Wisconsin admitting-privileges law that the undue burden test required judges to weigh the state’s justification for the law against its effects on women seeking abortions.

“The feebler the medical grounds, the likelier the burden, even if slight, to be ‘undue’ in the sense of disproportionate or gratuitous,” Posner wrote. “It is not a matter of the number of women likely to be affected.”

U.S. District Judge Myron H. Thompson followed a similar approach in striking down Alabama’s admitting-privileges law on Monday, holding that the restrictions did not serve enough of a medical purpose to justify shutting down three of the state’s five clinics.

The Wisconsin case is still in progress, but if the 7th Circuit strikes down that law, the disagreement among appeals courts would create a “circuit split,” said John Robertson, a law professor at the University of Texas at Austin. That might persuade the Supreme Court, which tends to avoid abortion cases, to settle the issue.

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